DOMA: House GOP seeks lead role

Posted Fri, February 22nd, 2013 4:36 pm by Lyle Denniston

The Republican leaders of the House of Representatives urged the Supreme Court on Friday to cast aside the Obama administration’s appeal on the constitutionality of the federal Defense of Marriage Act, though that already has been granted review, and to then take on the dispute in the GOP chiefs’ own case in defense of the law.

In a brief answering jurisdictional questions raised by the Court when it took on the DOMA dispute, the House’s Bipartisan Legal Advisory Group (BLAG) argued that it has a right under the Constitution’s Article III to be in court in DOMA cases. It noted that the administration has stopped defending the law and instead is attacking it.

(BLAG is a five-member panel with three Republicans and two Democrats. The brief noted that all five support Article III standing for the panel, but the Democrats do not support the GOP members’ defense of DOMA. It is not clear that the Democrats support the plea to put aside the government appeal.)

The new filing also contended that the New York woman who was at the center of the case the Court is reviewing does not have a right to appeal. Both the administration and Ms. Windsor won in lower courts, getting everything that they wanted out of the controversy, and thus have given up their right to pursue the case in the Supreme Court.

“Without the House’s participation,” the document said, “it is hard to see how there is any case or controversy here at all. Both Ms. Windsor and the executive agree that DOMA is unconstitutional and that Ms. Windsor was entitled to a refund [for an estate tax she paid]. And the lower courts granted them all the relief they requested. Only the House’s intervention provides the adverseness that Article III demands.”

The legal advisory panel, treating its membership as the representative of the full House of Representatives, said that the House “has a concrete interest in ensuring that its passage of DOMA is not completely nullified by a binding judicial determination.” That would impose “a direct injury on the House,” and that could be remedied by a ruling by the Justices upholding DOMA, it added, commenting: “Article III requires no more.”

With the Administration and Ms. Windsor without a right to appeal, in the House GOP view, the brief said that there remains “a party aggrieved” by the Second Circuit’s decision striking down DOMA’s ban on federal benefits for same-sex marriages. “That party is, of course, the House,” the brief said.

If the Court accepts its views on the jurisdictional points, the brief said, “the proper course is clear”: the Court should dismiss the government’s petition (docket 12-307) and grant the House’s own separate petition (docket 12-785) “as the vehicle to resolve the question of DOMA’s constitutionality.”

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.